United States District Court, W.D. Washington, Tacoma
PATRICK K. GIBSON, Petitioner,
RONALD HAYNES, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable J.
Richard Creatura, United States Magistrate Judge (Dkt. 23),
and Petitioner's objections to the R&R (Dkt. 25). The
procedural and factual history of this case is set forth in
the R&R, which was filed on December 15, 2017. Dkt. 23.
On December 25, 2017, Petitioner filed his objections. Dkt.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
raised six grounds for relief in his petition. Dkt. 4. The
R&R recommends the dismissal of all of them. Dkt. 23.
Petitioner objects to the dismissal of grounds 1-5 while
conceding ground 6 without objection. Dkt. 25 at 2.
Petitioner raises eight objections to the R&R, although
his arguments on some of these issues overlap.
first argues that the R&R and decisions from state courts
have mistakenly required that he show bad faith to establish
a constitutional error in the failure of police to preserve a
fingerprint and white hairs as evidence. See Dkt. 25
at 2-8. He further argues that the destroyed evidence was
apparently exculpatory prior to its destruction and the
unique nature of the evidence left him unable to obtain
comparable evidence through other means. Id.
failure of a state to preserve evidence ‘of which no
more can be said than it could have been subjected to tests,
the results of which might have exonerated the defendant,
' is not a denial of due process of the law ‘unless
a criminal defendant can show bad faith on the part of the
police.'” Dickey v. Davis, 231 F.Supp.3d
634, 766 (E.D. Cal. 2017). Contrary to Petitioner's
argument, the forensic evidence described above falls under
this category of “potentially exculpatory”
evidence. Petitioner's argument focuses on the likelihood
that the above-described evidence would have exculpated
Petitioner had it been tested and subsequently found to match
evidence found at the Spokane crime scene. See Dkt.
4 at 29. Further, the information that Petitioner's
claims were materially exculpatory, such as the fact that the
hair and fingerprints did not match him, was in fact admitted
at trial and relied upon by Petitioner's counsel. Because
Petitioner has failed to show bad faith on the part of
police, his claim based on the State's failure to
preserve this evidence must fail.
next argues that the R&R misinterpreted his argument
regarding a portion of the fake beard fibers that were
provided to Idaho law enforcement authorities to help with
their investigation into the Coeur D'Alene bank robbery.
Dkt. 25 at 8-9. Specifically, he states that the R&R
construed his argument as one regarding the failure to
preserve or disclose evidence as opposed to an argument on
the admissibility of altered evidence. Id. However,
the R&R gave Petitioner the benefit of the doubt by
addressing his petition under both arguments. See
Dkt. 23 at 26. Because Petitioner's evidentiary argument
regarding the fake beard fibers was in fact addressed by the
R&R, this objection fails, and the Court adopts the
analysis set forth in the R&R.
Prosecutorial Misconduct, Ineffective Assistance of Counsel,
Cumulative Error, Abuse of Discretion, and Sufficiency of the
next objects to the R&R's conclusions that there was
no prosecutorial misconduct in his trial and that he did not
suffer from ineffective assistance of counsel. Dkt. 25 at
9-25. Petitioner's objections on these grounds are simply
a restatement of his arguments before Judge Creatura. The
Court agrees with the R&R. Contrary to Petitioner's
arguments, the record does not contain any indication of
perjury, and aside from his unsupported allegations of
perjury, Petitioner's arguments asserting misconduct
consist of speculation about the weight of or the proper
inferences to be drawn from certain evidence. Furthermore,
even if the statements of the prosecutor could be construed
as misrepresentations, there is no evidence that such
statements had any actual injurious effect on the finder of
fact. Also, the Court agrees with the R&R's
resolution of Petitioner's ineffective assistance of
counsel arguments-Petitioner's counsel acted effectively
and, at the very least, Petitioner has failed to establish
that any of the alleged errors resulted in prejudice.
further argues that misconduct by the prosecutor combined
with the ineffective assistance of counsel to result in
cumulative error. However, the Court has already rejected
Petitioner's arguments regarding prosecutorial misconduct
and even if the Court were to construe his allegations about
his counsel as errors, which the Court has already declined
to do, the combined effect of those alleged errors would not
“infect the trial with unfairness or render
[Petitioner's] defense far less persuasive than it might
otherwise have been.” Ybarra v. McDaniel, 656
F.3d 984, 1001 (9th Cir. 2011).
objections regarding “abuse of discretion” and
insufficient evidence are similarly a mere restatement of the
arguments advanced in his petition. Dkt. 25-30. The Court
agrees with the R&R's conclusions that there was
sufficient evidence to sustain Petitioner's conviction
and that Petitioner has failed to establish any “abuse
of discretion” by the state courts that constituted an
unreasonable determination of the facts in light of the
evidence before it.
Evidence Not ...